Thurston v. Kennett

Eastman, J. The plaintiff had the right to commence and close. This precise question, it is believed, was settled in Belknap v. Wendell, 1 Foster’s Rep. 175. The general rule is, that the party who has the affirmative of the issue to maintain, shall begin and close. This rule, however, has been held subject to several limitations, and been more or less fluctuating both in England and America; so much so, that it would be difficult, perhaps, at the present time, to lay down any definite rules of practice as well sustained by authority, which could not be contradicted by other authority equally respectable. Some jurisdictions hold it to be a matter of right, while others decide that it rests in the legal discretion of the Court at the trial. Many authorities might be cited where this question has been raised. Among some of the most prominent are—Young v. Bairner, 1 Esp. 103 ; Curtis v. Wheeler, 3 Carr. & Payne, 340 ; Soward v. Leggatt, 7 C. & P. 613 ; Fowler v. Coster, 1 [159] Mood. & M. 243 ; Note of Reporter, 1 Mood. & M. 278, 281; Roby v. Howard, 2 Starkie’s Rep. 555; Lacon v. Higgins, 3 Starkie’s Rep. 178 ; Cooper v. Wakeley, 3 Carr. & Payne, 474; Comstock y. Hadlyme, 8 Conn. Rep. 261; Scott v. Hull, 8 Ib. 296, 303; Davis v. Mason, 4 Pick. 156; Ayer v. Austin, 6 Pick. 225; Brooks v. Barret, 7 Pick. 94. Wherever the pleadings admit the plaintiff’s whole cause of action, and attempt to avoid it by new matter, the defendant has the right to begin and close. But where the whole is not admitted and anything is left for the plaintiff to show, the right to commence and close is with him. The defendant avowed the taking in the westerly half of lot No. 50, in the south division of lots in Baton, and alleged that said westerly half was his soil and freehold. The plaintiff replied, that the soil and freehold was in one Josiah Thurston, and tendered an issue thereon; which issue the defendant joined. The question then, was upon the soil and freehold of Thurston, and the affirmative of the question was with the plaintiff. ■ He had tendered the issue, and was bound to make it out, and thus had the right of opening and closing the case. The title, upon which the plaintiff rests, commences with George Walker, who, in 1814, mortgaged the premises to John Pierce, the executor of the last will and testament of Joseph Pierce, to secure a note given to the said Joseph in his lifetime, and belonging to his estate. What the will of Joseph was, does not appear, and consequently we are left without any information as to the disposition that was to be made of his property. Had the note been specifically devised, it would no doubt have been passed over to the legatee, or had John any claim to it other than as executor, the mortgage would have been taken to him in his private capacity. We cannot infer, what does not appear, that this note belonged to any one, except to the estate ; or that it could be legally appropriated for any purposes other than to pay the debts of the estate and carry out the provisions of the will. No steps were taken to collect the note or foreclose the mortgage during the lifetime of John; who himself made his will and died within a few months after the date of the mortgage. [160] He, by his will, ordered that his property, except sundry legacies, should be distributed according to law, and appointed his wife, Mary, executrix, and his sons, Mark W. and Joshua, executors of his will. It does not appear that any mention was made of this mortgage in his will; hut his executors proceed to foreclose the same and obtain possession of the land. To the proceedings in this foreclosure, and to the manner of obtaining possession, several exceptions were taken upon the trial; but inasmuch as the decision of the case, in the view which the court have taken of it, does not require a particular examination of these exceptions, we pass them. Assuming that the proceedings to foreclose were regular, if any right to the property thereby vested in the estate of John, Mark W. Pierce and Joshua Pierce, his sons, would take; since, by the will of John, his estate, excepting some legacies, was to be divided according to law. Mark W. Pierce subsequently died and made his brother Joshua residuary legatee and executor. In his will no mention is made of the premises, and for aught that appears in the case, Joshua would be the owner of whatever right his brother Mark W. had therein. Joshua, and his brother Daniel H. .Pierce — who would inherit from his father John, under his will, — then conveyed to Josiah Thurston, whose title the plaintiff sets up to sustain his action. Consequently as Josiah Thurston derives his title from John Pierce, upon the sufficiency of Pierce’s title depends that of Thurston. If, then, John Pierce ever had any legal interest in the premises which could be transmitted to his heirs, the plaintiff sustains the issue on his part. This note, which formed the foundation of the mortgage, belonged to the estate of Joseph Pierce. If no mortgage had been given, the proceeds of the note, if not required to pay debts and legacies and expenses of settling the estate, would have gone to the heirs. The simple act of taking the mortgage does not change the property, nor can it thereby be diverted from its legal destination. A mortgage, for the purpose of protecting the rights of the mortgagee against waste, and tof securing to him the rents and profits of the land, is regarded as passing the [161] title to the premises; and unless there be a stipulation in the deed to the contrary, the mortgagee may enter upon the premises at once. But viewed as a security for the debt, it is a mere incident to the debt, and dependent upon that for its vitality. It follows the note, and when that is paid, it ceases to have any effect. Southerin v. Mendum, 5 N. H. Rep. 429. This mortgage was given to secure the note as the property of the estate, and all proceedings for its foreclosure, must be regarded as for the benefit of the estate. John Pierce, had he lived and foreclosed the mortgage himself, could have acquired no right to the property beyond what attached to him by virtue of his office as executor. The foreclosure of the mortgage would have vested the legal estate in the heirs of Joseph. Gibson et al. v. Bailey et al., 9 N. H. Rep. 168. John could have acquired no personal right to the premises, and nothing would have vested in him which could pass to his representatives. After his decease, the proper course to close up the estate of Joseph, would have been for an administrator de bonis non, with the will annexed, to have been appointed. The mortgage could then have been regularly foreclosed and the property applied according to law under the direction of the Probate Court. But even if the executors of John had the right to foreclose the mortgage, still the interest in the premises after the foreclosure would be in the estate or the heirs of Joseph. It could not go to the estate of John or to his heirs. As, therefore, Johh Pierce’s title to the premises is without foundation, Joseph Thurston’s must also be; and, consequently, the plaintiff fails to maintain the issue by virtue of any legal title in Thurston: The possession of the premises has been conflicting. Taking the most favorable view for the plaintiff, which the evidence presents, it appears that the defendant was in exclusive possession, under color of title, from 1839 to 1847, the date of the Thurston deed; that the Pierces had possession twelve years, from 1827 to 1839, and that after the date of the Thurston deed in March, 1847, the possession was mixed. Neither party has shown sufficient evidence to gain title by adverse possession; and inasmuch as the defendant was in possession under color of title [162] •when Thurston took his deed, Thurston’s possession after that, unless it be such as to oust the defendant, can avail him nothing without a legal title.- As the plaintiff, therefore, fails to show any title in Thurston, either by deed or possession, the verdict must be set aside, and a New trial granted.